Cruel? Sure, but How Unusual?

One of the most interesting dynamics on the Roberts Court is the emerging rivalry between Justice Antonin Scalia and Justice Samuel Alito for intellectual leadership of the conservative wing. From time to time, Alito openly mocks Scalia’s “originalist” philosophy (see, for example, his concurrence in United States v. Jones, ridiculing the idea that “eighteenth-century tort law” can decide questions about global positioning technology). It’s a generation thing: Alito is a callow 62 to Scalia’s 76. Like young folk everywhere, he’s embarrassed for his friends to see him in public with crazy Uncle Nino.

So spare Alito a shred of empathy for what happened during the opinions session Monday. For the first time in his tenure, Alito delivered a dissent from the bench. It was a stem-winder, too—largely ad lib, intemperate, and dripping with scorn for the Court’s majority.

Yet Scalia’s bizarre electioneering rant against Obama the same day is now the talk of the legal nerdosphere. The outrage is entirely merited—Scalia’s oral and written dissents in Arizona v. United States sound a bit like Rush Limbaugh, except not quite as subtle or fair as Rush. Even by the loose standards of “originalism,” they were largely content free, cobbled together from odd half-scraps of history (states can have their own immigration policy, he said, because before the Civil War they were permitted to exclude free blacks).

Alito’s dissent, though also over the top, came in a case where the result was close. And it was about, well, law.

The case is Miller v. Alabama, which held that offenders who commit crimes before their 18th birthdays can no longer be subject to mandatory sentences of life without parole (LWOP). (A lot of press accounts suggest the case abolished LWOP for juveniles; it didn’t. Miller held only that the sentence can’t be mandated by statute. Legislatures can provide judges the option of giving juvenile offenders LWOP after an individualized sentencing hearing that takes their youth into account.)

There’s something dreadful about LWOP in general, but when applied to young people—the offenders before the Court were each 14 when they participated in a killing—it is hideous. Many young people will, as they mature, grow out of the impulsive, violent behavior that may have landed them in trouble. Studies produced by the petitioners in this case show that no one—judge, jury, psychologist—can predict which child offenders will remain dangerous as adults. To pronounce young teenagers hopeless cases is terrible criminal-justice policy and goes against every humane instinct we might have.

But the problem comes in trying to find that judgment in the Eighth Amendment’s guarantee against “cruel and unusual punishment.” LWOP for juveniles is cruel, to be sure. The majority opinion in Miller, written by Justice Elena Kagan, does a superb job of pointing out the Dickensian harshness of this practice. Along the way, Kagan enunciates a useful principle: “Imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they are not children.”

But is mandatory LWOP “unusual”? Twenty-nine states allow such sentences for juveniles. Life sentences for crimes committed by teens under the age of 16 are “cruel and unusual”—there have apparently been fewer than 80 such sentences in 40 years. On the other hand, when 16- and 17-year-olds are counted, the result is about 2,500—not quite routine, but not rare either. As Chief Justice John Roberts pointed out in his separate dissent, “The Court invokes [the Eighth] Amendment to ban a punishment that the Court does not itself characterize as unusual.”

The majority deals with this fact by noting, correctly, that most states have not adopted LWOP for juvenile offenders as a matter of conscious penal policy. Instead, they have one set of laws permitting the trial of some juveniles as adults and another set prescribing mandatory sentences. The result is that a juvenile tried as an adult for certain murders faces the adult penalty, which in some cases is LWOP. The opinion concludes that these results come from “possibly or probably inadvertent legislative outcomes.”

I’m elated at the result. But if I were a judge, I’d have to think hard before signing on to the “inadvertent outcomes” rationale. That’s because courts should take legislative judgments seriously before they overturn them, whether they concern sentencing or health care.

Alito’s dissent smothered that valid point in his trademark aria of over-the-top anti-criminal apocalypse. He pictured his colleagues rushing to the aid of teen terrorists and school shooters: “Even a 17 ½ -year-old who sets off a bomb in a crowded mall or guns down a dozen students is a ‘child’ and must be given a chance to persuade a judge to permit this release into society,” he warned. Later he made the more substantive charge that “our Eighth Amendment cases are no longer tied to any objective indicia of society’s standards.”

On the bench, Alito departed from the text to throw more scorn at Kagan (who sits at his elbow), accusing the majority of regarding the legislatures as “stupid.” He concluded with this remarkable sentence: “We have no license to impose our vision of the future on a nation of 317 million people.”

All in all, it was quite a performance. The histrionics hid a genuine and important disagreement. How frustrating for Alito that crazy Uncle Nino’s nasty tantrum stole the show again.

Did Chief Justice Roberts change his mind about the Affordable Care Act at the last minute? Whatever happened, it's going to be a long time before we find out.

About the Author

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.com. His book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.